JACKSONVILLE, Fla. - The defense team for the man accused in the 2013 kidnapping, rape and murder of 8-year-old Cherish Perrywinkle wants recordings of jail conversations between Donald Smith and another inmate to be blocked from being used in Smith's trial.
The conversations between Smith and convicted murderer Randall Deviney were recorded while the two were in adjacent cells in the Duval County jail.
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Smith’s new attorney, Charles Fletcher, has filed a motion to suppress the recordings, which captured 74 hours of conversations between Smith and Deviney, claiming that they were obtained unlawfully, without a warrant.
At a hearing before Judge Mallory Cooper on the motion Thursday, State Attorney's Office investigator Robert Henson testified that he received information that a confidential informant wanted to provide information about Donald Smith. He said the informant said that Smith and Deviney were communicating through vents and that they planned to be "disruptive to court proceedings."
Henson said that investigators put a sensitive piece of recording equipment in the vents to catch the conversations between Deviney and Smith, and the recordings ran for 74 hours.
According to testimony, the device was placed June 23, 2015, eight days after Deviney’s lawyer spoke with the State Attorney’s Office, claiming Deviney had information that Donald Smith committed a prior murder, and that Deviney wanted to tell the state in exchange for the death penalty being taken off the table in his case. The state refused and declined Deviney as a witness.
A detective testified that he dressed up as a maintenance worker to place the recording equipment in the vents and that the device was removed 74 hours later.
During the recordings, there was no talk between Smith and Deviney about a second homicide.
The state told Cooper on Thursday that there is no expectation of privacy in jail, particularly if inmates are communicating inappropriately through air vents.
But Smith's defense team said the device was placed just 25 feet away from an office where attorneys meet with their clients. Fletcher said that is unacceptable, because they could be discussing very private things with their clients.
"It’s bad enough that when they call our offices they’re recorded, when they meet with their families, they’re recorded, and now defense attorneys have to worry about the placing of these devices -- who knows where in the jail now -- but 25 feet from where attorneys meet their clients I think is unacceptable, and this was done without any judicial oversight," Fletcher said.
The state countered, saying inmates walking the hallways directly outside that room would have a better chance of hearing the conversations.
Cooper set an Oct. 6 status hearing for Smith's case and said the court will have an order before that on whether the recordings will be allowed at trial.
While he awaited retrial, Deviney sent a handwritten letter to the State Attorney's Office, saying that Smith told him about a previous rape and murder that he committed, and Deviney was willing to trade that information for a lighter sentence in his murder case.
The State Attorney's Office has said it thinks Deviney was lying about another case to benefit himself. Deviney has since been reconvicted and resentenced to death for killing Delores Futrell in 2008. Smith's trial date has not been set.
Smith's attorneys argued last year that since he signed a form the day after his arrest saying that he would not speak to police, Smith should have been read his rights because Deviney “was acting as an agent of the state” because his lawyer had offered help in the case against Smith.
But the state argues Deviney was not acting as an agent because the assistant state attorney said from the beginning that he was not interested in having Deviney as a witness.
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